ADAMS, et. al. v. CLEVELAND-CLIFFS IRON CO., et. al.

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ADAMS, et. al.

v.

CLEVELAND-CLIFFS IRON CO.,
et. al.

August 6, 1999

No. 203481

LC No. 92-027692 NZ

Marquette Circuit Court

DAVID P. ADAMS, ET AL.,

Plaintiffs-Appellees,

v.

CLEVELAND-CLIFFS IRON COMPANY and EMPIRE MINING
PARTNERSHIP,

Defendants-Appellants.

Before: Whitbeck, P.J., and Markman and
O’Connell, JJ.

O’CONNELL, J.

Defendants appeal as of right from a jury
verdict awarding damages in trespass for invasions of
plaintiffs’ property by intrusions of dust, noise, and
vibrations. The gravamen of this appeal presents the question
whether Michigan recognizes a cause of action in trespass
stemming from invasions of these intangible agents. No published
decision of an appellate court of this state is directly on
point. Because of the importance of this issue of first
impression, we will expound upon it in some detail. Following a
recitation of facts, we will examine the origins of the doctrines
of trespass to land and nuisance, observe recent developments of
those doctrines in this and other jurisdictions, and then
reaffirm for this state the traditional requirements for a cause
of action in trespass.

We conclude that the law of trespass in
Michigan does not cover airborne particulate, noise, or
vibrations, and that a complaint alleging damages resulting from
these irritants normally sounds instead in nuisance.[1]

I Facts

Plaintiffs brought suit seeking damages in both
trespass and nuisance, complaining of dust, noise, and vibrations
emanating from the Empire Mine, which is operated by defendant
Cleveland-Cliffs Iron Company and its subsidiary, defendant
Empire Iron Mining Partnership.

The Empire Mine is one of the nation’s
largest mines, producing eight million tons of iron ore annually.
The mine operates twenty-four hours a day, year round. At the
time this action was commenced, all but three plaintiffs lived
near the mine, in the Village of Palmer in Marquette County.
Cleveland-Cliffs, which also operates the nearby Tilden Mine,
employs approximately 2,200 persons, making it the area’s
largest civilian employer.

The Empire Mine was originally dug in the
1870s, then expanded in the 1960s. A second pit was added in
1987, and a third in 1990-1991.[2] The mine
engages in blasting operations approximately three times a week,
year round, and the extraction and processing of the iron ore
generates a great deal of airborne dust. Plaintiffs complain that
the blasting sends tremors through their property, and that
defendants’ dust constantly accumulates inside and outside
of plaintiffs’ homes. Plaintiffs assert that these
emanations aggravate their need to clean and repaint their homes,
replace carpets and drapes, repair cracks in all masonry, replace
windows, and tend to cause plumbing leaks and broken sewer pipes.

According to the testimony, the dust from the
mine is fine, gritty, oily, and difficult to clean. Some
plaintiffs complained that they seldom opened their windows
because of the dust, and virtually every plaintiff complained
that the snow in Palmer tended to be gray or black. Evidence
presented at trial indicates that the emissions from the mining
operations have consistently remained within applicable
air-quality standards, and that the amount of particulate matter
accumulating over Palmer each month amounts to less than the
thickness of a sheet of paper, but that this amount is
nonetheless four times greater than what normally settles onto
surrounding communities.

In addition to concerns about the dust, many
plaintiffs testified that the noise and vibrations from the
blasts caused them to suffer shock, nervousness, and
sleeplessness. Finally, several plaintiffs asserted that these
conditions diminished the value of their homes, in some cases to
the point of rendering them unmarketable.

At the close of proofs, the trial court
instructed the jury on both trespass and nuisance. The jury found
that three of the plaintiffs were not entitled to recover under
either theory. Concerning the remaining fifty-two plaintiffs,
however, the jury was unable to agree on a verdict on the
nuisance claim, but returned a verdict in favor of these
plaintiffs on the trespass claim, awarding damages totaling
$599,199. The court denied defendants’ post-trial motions
for a new trial or judgment notwithstanding the verdict.

The sole issue that defendants raise on appeal
is the propriety of the trial court’s jury instruction
concerning plaintiffs’ trespass claim:

Every unauthorized intrusion onto the lands
of another is a trespass upon those lands, and it gives rise
to a right to recover damages for the trespass, if any
damages were caused by the trespass. So a landowner who
causes emissions, dust, vibration, noise from his property
onto another [sic] property assumes the risk of trespass, if
the dust, vibration, noise affects the neighbor’s
property, or if he causes by his actions, damages or invasion
of his neighbor’s land.

So again, to repeat. A trespass is an
unauthorized intrusion into the lands of another.

Defendants placed no objection on the record
pursuant to a contention that the trial court’s instruction
improperly recognized a cause of action in trespass where the
intrusion complained of consisted of airborne particulate, noise,
or vibrations. Nonetheless, in the interests of justice,[3] and because the issue concerns a question of law and
all the facts necessary for its resolution have been presented,[4] we will examine the related doctrines of trespass and
nuisance, and determine how they bear on the intrusions at issue
in this case. See Frericks v Highland Twp, 228 Mich App
575, 586; 579 NW2d 441 (1998) ("this Court may go beyond the
issues raised on appeal and address issues that, in this
Court’s opinion, justice requires be considered and
resolved").[5]

II Trespass and Nuisance

The general concept of property comprises
various rights — a "bundle of sticks," as it is
often called[6] — which is usually understood to include
"[t]he exclusive right of possessing, enjoying, and
disposing of a thing." Black’s Law Dictionary (6th
ed, 1990), p 1216. As this latter characterization suggests, the
right to exclude others from one’s land and the right to
quiet enjoyment of one’s land have customarily been regarded
as separate sticks in the bundle. E.g., Lucas v South Carolina
Coastal Council, 505 US 1003, 1044; 112 S Ct 2886; 120 L Ed
2d 798 (1992) (Blackmun, J., dissenting) (addressing as separate
"attributes of ownership" the rights of exclusion,
alienation, and enjoyment); Biggs v Comm’r of Internal
Revenue, 632 F2d 1171, 1177 (CA 5, 1980) ("title to real
property . . . is nothing more than a bundle of
potential causes of action: for trespass, to quiet title, for
interference with quiet enjoyment, and so on"); Margit
Livingston, Public Access to Virginia’s Tidelands: A
Framework for Analysis of Implied Dedications and Public
Prescriptive Rights, 24 Wm & Mary L Rev 669, 698 (1983)
("The notion of fee simple ownership carries with it the
idea that the owner may exclude all others from his property,
shall have the quiet enjoyment of it, and shall be free from
unrecorded conflicting interests in it."), citing J.
Cribbett, Principles of the Law of Property (2d ed, 1975), pp
263-332.[7]Thus, possessory
rights to real property include as distinct interests the right
to exclude and the right to enjoy, violations of which give rise
to the distinct causes of action respectively of trespass and
nuisance. Prosser & Keeton, Torts (5th ed),
§ 87, p 622.

A Historical Overview

"At common law, trespass was a form of
action brought to recover damages for any injury to one’s
person or property or relationship with another."
Black’s Law Dictionary at 1502. This broad usage of the term
"trespass" then gave way to a narrower usage, referring
to intrusions upon a person’s "tangible property, real
or personal." Prosser & Keeton, supra at
§ 13, p 67. Today, the general concept of
"trespass" has been refined into several specific forms
of trespass, see Black’s Law Dictionary at 1502-1504, and
related doctrines known by various names. Landowners seeking
damages or equitable relief in response to violations of their
possessory rights to land now generally proceed under the
common-law derivatives of strict liability, negligence, nuisance,
or trespass to land.[8] It is the latter two products of this evolution from
the general concept of trespass that are at issue in the present
case.

"‘[T]respass is an invasion of the
plaintiff’s interest in the exclusive possession of his
land, while nuisance is an interference with his use and
enjoyment of it.’" Hadfield v Oakland Co Drain
Comm’r, 430 Mich 139, 151; 422 NW2d 205 (1988)
(Brickley, J., joined by Riley, C.J., and Cavanagh, J.), quoting
Prosser & Keeton, supra at § 87, p 622.
Historically, "[e]very unauthorized intrusion upon the
private premises of another is a trespass
. . . ." Giddings v Rogalewski, 192
Mich 319, 326; 158 NW 951 (1916). Because a trespass violated a
landholder’s right to exclude others from the premises, the
landholder could recover at least nominal damages even in the
absence of proof of any other injury. Id. Recovery for
nuisance, however, traditionally required proof of actual and
substantial injury.[9] Further, the doctrine of nuisance customarily called
for balancing the disturbance complained of against the social
utility of its cause.[10]

Traditionally, trespass required that the
invasion of the land be direct or immediate, and in the form of a
physical, tangible object. See, e.g., Williams v Oeder,
103 Ohio App 3d 333, 338 n 2; 659 NE2d 379 (1995) (noting then
abandoning those traditional requirements); Davis v
Georgia-Pacific Corp, 251 Or 239, 242; 445 P2d 481 (1968)
(abandoning the traditional requirements); Norwood v Eastern
Oregon Land Co, 139 Or 25, 37; 5 P2d 1057 (1931), 7 P2d 996
(1932) (wrongful diversion of water onto another’s land does
not constitute trespass to land). Under these principles,
recovery in trespass for dust, smoke, noise, and vibrations was
generally unavailable because they were not considered tangible,
or because they came to the land via some intervening force such
as wind or water. Instead, claims concerning these irritants were
generally pursued under a nuisance theory.

B Recent Trends

Plaintiffs urge this Court to hold that they
are entitled to recover in trespass for invasions of their
premises by intangible things, and without regard for how these
annoyances came to their land. Plaintiffs would have us follow
the example of certain courts from other jurisdictions, which
have eliminated the traditional requirements for trespass of a
direct intrusion by a tangible object, directing the inquiry
instead toward the nature of the interest harmed. These courts
have permitted recovery in trespass for indirect, intangible
invasions that nonetheless interfered with exclusive possessory
interests in the land. See 75 Am Jur 2d, Trespass, § 33, and
cases cited. See also Mercer v Rockwell Int’l Corp,
24 F Supp 2d 735, 743 (WD Ky, 1998) (allowing an action in
"negligent trespass" concerning intrusions of invisible
polychlorinated biphenyls [PCBs] that actually harm the
property); Williams, supra (airborne particulate matter
from a sand and gravel processing facility, an asphalt plant, and
a concrete plant constituted trespass); Martin v Reynolds
Metals Co, 221 Or 86; 342 P2d 790 (1959) (trespass may stem
from fluoride compounds in the form of gases and particles). We
agree with Prosser and Keeton’s characterization of cases of
this sort as being "in reality, examples of the tort of
private nuisance or liability for harm resulting from
negligence," not proper trespass cases. Prosser &
Keeton, supra at § 13, pp 71-72 (concerning
"decisions finding a trespass constituted by the entry of
invisible gases and microscopic particles, but only if harm
results"). Accordingly, we decline plaintiffs’
invitation to strip the tort of trespass to land of its
distinctive accouterments and commingle its identity with other
causes of action.

As stated above, the traditional view of
trespass required a direct entry onto the land by a tangible
object. However, recent trends have led to an erosion of these
requirements. Some courts have eliminated the requirement of a
direct entry onto the land. E.g., Bradley v American Smelting
& Refining Co, 104 Wash 2d 677, 686; 709 P2d 782 (1985); Borland
v Sanders Lead Co., 369 So 2d 523, 527 (Ala, 1979); Martin,
supra at 101 (observing the trend without deciding whether to
join it), citing Prosser, Torts (2d ed), p 56; 1 Restatement,
Torts, § 158, cmt h. Some courts have likewise eliminated
the requirement of a tangible object. E.g., Bradley, supra
at 686; Borland, supra at 529. See also Martin, supra
at 100 (trespass to land may be accomplished by "a ray of
light, by an atomic particle, or by a particulate of fluoride).
In some cases the direct-and-tangible inquiry has been supplanted
by an inquiry into the force and energy of the intruding agent.
E.g., Bradley, supra at 687; Borland, supra at 527;Martin, supra at 93.

The courts that have deviated from the
traditional requirements of trespass, however, have consequently
found troublesome the traditional principle that at least nominal
damages are presumed in cases of trespass. Thus, under the
so-called modern view of trespass, in order to avoid subjecting
manufacturing plants to potential liability to every landowner on
whose parcel some incidental residue of industrial activity might
come to rest, these courts have grafted onto the law of trespass
a requirement of actual and substantial damages. Bradley,
supra at 692; Borland, supra at 529. See also Martin,
supra at 96 (observing that "[t]here are adjudicated
cases which have refused to find a trespass where the intrusion
is clearly established but where the court has felt that the
possessor’s interest should not be protected").
Logically following from a requirement of substantial damages is
the weighing of those damages against the social utility of the
activity causing them. Martin, supra at 97 (balancing
"the intrusion . . . against the socially
desirable conduct of the defendant"). See also Bradley,
supra at 685 ("While the strict liability origins of
trespass encourage courts to eschew a balancing test in name,
there is authority for denying injunctive relief if defendant has
exhausted his technological opportunities for
control. . . . Acknowledging technological or
economic justifications for trespassory invasions does away with
the historically harsh treatment of conduct interfering with
another’s possessory interests.").[11]

We do not welcome this redirection of trespass
law toward nuisance law. The requirement that real and
substantial damages be proved, and balanced against the
usefulness of the offending activity, is appropriate where the
issue is interference with one’s use or enjoyment of
one’s land; applying it where a landowner has had to endure
an unauthorized physical occupation of his or her land, however,
offends traditional principles of ownership. The law should not
require a property owner to justify exercising the right to
exclude. To countenance the erosion of presumed damages in cases
of trespass is to endanger the right of exclusion itself.

To summarize, the effects of recent trends in
the law of trespass have included eliminating the requirements of
a direct invasion by a tangible object, requiring proof of actual
and substantial damages, and weighing the plaintiff’s
damages against the social utility of the operation causing them.
This so-called "modern view of trespass" appears, with
all of its nuances and add-ons, merely to replicate traditional
nuisance doctrine as recognized in Michigan. Indeed, the trends
recognized or advanced by Bradley, Borland, Martin, and
their kindred spirits have conflated nuisance with trespass to
the point of rendering it difficult to delineate the difference
between the two theories of recovery.

With all of these modern adjustments to
traditional trespass law, little wonder that it has become
difficult to differentiate between trespass and nuisance. These
adjustments have caused some to observe that "the line
between trespass and nuisance has become ‘wavering and
uncertain,’" Bradley, supra at 684,
quoting W. Rodgers, Environmental Law § 2.13, pp 154-157 (1977).
See also Burke v Briggs, 239 NJ Super 269, 272; 571 A2d
296 (1990) (the blurring of the distinction between the two
causes of action "has often led to results that are
difficult to explain"), citing Prosser & Keeton, supra
at § 87, p 622. Indeed, "it is apparent that the law of
trespass and the law of nuisance come very close to
merging." Martin, supra at 97. We prefer to preserve
the separate identities of trespass and nuisance.

C Adkins v Thomas Solvent Co

As stated above, no Michigan appellate court
has squarely confronted the question whether the law of trespass
in this state covers intrusions of intangible things, or effected
by indirect means. However, plaintiffs argue that in Adkins v
Thomas Solvent Co, 440 Mich 293; 487 NW2d 715 (1992), the
Michigan Supreme Court impliedly eliminated the requirements that
a trespass involve intrusions that are both direct and tangible.
We disagree.

In Adkins, the plaintiffs sought damages
in nuisance from the defendant chemical company, on the ground
that public perceptions to the effect that the defendant’s
activities were causing environmental contamination of the ground
water caused depreciation of their property values, id. at
300, even though the plaintiffs acknowledged the defendant’s
activities in fact did not harm their groundwater, id. at
318. Our Supreme Court ruled that summary disposition was proper
because unfounded fears of contamination did not constitute a
significant interference with plaintiffs’ use and enjoyment
of their property, and thus did not rise to the level of an
actionable private nuisance claim. Id. at 318-319.

In discussing the historical development of
nuisance law, the Court observed that the doctrine of nuisance
evolved from that of trespass, id. at 307-308, and
recognized that traditionally in cases of trespass damage was
presumed whereas in nuisance substantial damage had to be proved:

Any intentional and unprivileged entry on
land is a trespass without a showing of damage, since those
who own land have an exclusive right to its use; but an act
that interferes with use but is not in itself a use is not
actionable without damage. The substantial interference
requirement is to satisfy the need for a showing that the
land is reduced in value because of the defendant’s
conduct . . . . [Id. at 304-305,
quoting Prosser & Keeton, supra at § 87, p 623.]

However, in footnote 23, the Court recognized
the recent developments in other jurisdictions under which the
requirement for nuisance of substantial damage had crept into
trespass:

The common-law development of trespass,
like nuisance, is . . . illustrative of a need to
limit recovery to a proper case. In Bradley[, supra
at] 690-691 . . . , the court discussed the
modern view of trespass, which allowed recovery for indirect
invasions of property such as those caused by smoke or air
particles. Airborne particles might also give rise to an
action in nuisance. To avoid "sanctioning actions in
trespass by every landowner within a hundred miles of a
manufacturing plant," the court interposed the actual
and substantial damages requirement. Id., p 692. The
substantial interference doctrine achieves the same purpose
in nuisance law. [Adkins, supra at 310, n 23.]

Plaintiffs admit that Adkins was a
nuisance case, but argue that by way of the language quoted
immediately above our Supreme Court adopted the "modern view
of trespass" allowing recovery for invasions of property
such as those of which plaintiffs complain. However, we do not
regard dicta from Adkins in which the Supreme Court
referred to a sister-state trespass case to illustrate a point of
law regarding nuisance as effecting a merger of the two doctrines
in this regard. We have in fact found no case in this state in
which recovery in trespass was allowed merely for intrusions of
particulate matter, noise, or vibrations, and we decline to
inflect this state’s jurisprudence in that direction.
Instead, we prefer to respect the traditional requirement of a
direct invasion, and agree with Prosser and Keeton, supra
at § 13, p 72, that "[t]he historical requirement of an
intrusion by a person or some tangible thing seems the sounder
way to go about protecting the exclusive right to the use of
property."

III Holding

Recovery for trespass to land in Michigan is
available only upon proof of an unauthorized, direct or
immediate, intrusion of a physical, tangible object onto land
over which the plaintiff has a right of exclusive possession.
Once such an intrusion is proved, the tort has been established,
and the plaintiff is presumptively entitled to at least nominal
damages. Where the possessor of land is menaced by noise,
vibrations, or ambient dust, smoke, soot, or fumes, the
possessory interest implicated is that of use and enjoyment, not
exclusion, and the vehicle through which a plaintiff normally
should seek a remedy is the doctrine of nuisance. To prevail in
nuisance a possessor of land must prove significant harm
resulting from the defendant’s unreasonable interference
with the use or enjoyment of the property. Cloverleaf Car Co v
Phillips Petroleum Co, 213 Mich App 186, 193; 540 NW2d 297
(1995), citing Adkins, supra at 304. Thus, in nuisance,
the plaintiff must prove all damages, which may be awarded only
to the extent that the defendant’s conduct was
"unreasonable" according to a public-policy assessment
of its overall value. In the present case, because the intrusions
of which plaintiffs complained were intangible things, the trial
court erred in allowing the jury to award damages in trespass.
Instead, any award of damages would have had to proceed from
plaintiffs’ alternative but (as yet) unsuccessful theory of
nuisance.

As discussed above, we acknowledge that
numerous courts in other jurisdictions have permitted the erosion
of the traditional elements of the tort of trespass to land,
directing their inquiry instead toward whether the invasion
complained of interferes with the exclusive possession of the
land generally without regard to whether the intrusion is direct
or indirect, tangible or intangible. We prefer to retain the
traditional elements, however, because they serve as
gatekeepers—safeguarding genuine claims of trespass, and
keeping the line between the torts of trespass and nuisance from
fading into a "wavering and uncertain" ambiguity.
Further, retaining the distinction between the two theories of
recovery limits the possibilities for dual liability stemming
from the same conduct and results. See Osborne M. Reynolds,
Distinguishing Trespass and Nuisance: A Journey Through a
Shifting Borderland, 44 Okla L Rev 227, 229 (1991).

The trial court’s instruction on trespass,
as set forth above, recognized a right to recover in trespass
"if any damages were caused by the trespass," and that
the agents potentially causing the damages included
"emissions, dust, vibration, noise." Thus the trial
court seems to have mirrored (and indeed gone beyond) the
so-called modern view of trespass according to which intangible
irritants could constitute trespass. This instruction thus
erroneously conflated trespass with nuisance, and produced the
anomalous result that the jury failed to reach agreement on the
nuisance claim while awarding damages for intrusions of
intangible things pursuant to the trespass claim.

A Tangible

Because noise or vibrations are clearly not
tangible objects, we hold that they cannot give rise to an action
in trespass in this state.[12] We further hold that dust must generally be considered
intangible and thus not actionable in trespass.

We realize, of course, that dust particles are
tangible objects in a strict sense that they can be touched and
are comprised of physical elements. However, we agree with those
authorities that have recognized, for practical purposes, that
dust, along with other forms of airborne particulate, does not
normally present itself as a significant physical intrusion. See
Anno: Recovery in trespass for injury to land caused by
airborne pollutants, 2 ALR 4th 1054, 1055
("Traditionally, an invasion of the exclusive possession of
land by intangible substances, such as an airborne pollutant, was
usually held by the court not to constitute a trespass
. . . ."); Williams, supra at 338, n 2
(observing that some courts have held that a "‘tangible
invasion" or "object’" must be "more
substantial than dust, gas, or fumes"), citing Bradley,
supra at 686.

Dust particles do not normally occupy the land
on which they settle in any meaningful sense; instead they simply
become a part of the ambient circumstances of that space. If the
quantity and character of the dust are such as to disturb the
ambiance in ways that interfere substantially with the
plaintiff’s use and enjoyment of the land, then recovery in
nuisance is possible.

B Direct

"[S]ome courts have held that if an
intervening force, such as wind or water, carries pollutants onto
the plaintiff’s land, then the entry is not
‘direct.’" Williams, supra at 338, n 2,
citing Bradley, supra at 686. However, in order to avoid
harsh results most courts have avoided an overly strict
distinction between direct and indirect invasions, see Prosser
& Keeton, supra at § 13, pp 68-69. Still, "[t]he
differentiation between direct and indirect results may not be
absolutely dead." Id. at 71.[13]

Plaintiffs cite Littell v Knorr, 24 Mich
App 446; 180 NW2d 337 (1970), for the proposition that the law of
trespass in this state does not concern itself with whether the
invading agent comes to the land by foot, vehicle, air, or other
means. However, Littell in fact does not stand for that
proposition. Although Littell states that "liability
can result from pounding, compacting soil, vibrations,
etc.," id. At 450, that amorphous statement does not
identify the pertinent theory or theories of recovery. We hold
that the direct invasion requirement for an action in trespass to
land is still alive in Michigan. The question then becomes, how
strong must the connection between cause and effect be in order
to satisfy this requirement?[14]

We agree with the Restatement view that
"[i]t is enough that an act is done with knowledge that it
will to a substantial certainty result in the entry of the
foreign matter." Restatement Torts, 2d, § 158, cmt i,
p 279. Thus, a "direct or immediate" invasion for
purposes of trespass is one that is accomplished by any means
that the offender knew or reasonably should have known would
result in the physical invasion of the plaintiff’s land.[15]

C Damages

The question of presumed damages hardly seems
at issue in this case. There can be little doubt that plaintiffs
proved actual damages to the jury’s satisfaction, albeit,
for reasons set forth above, damages arguably flowing from
nuisance, not trespass. Nonetheless, because the jury instruction
at issue did not recognize the principle of presumed damages, we
take this opportunity to reiterate this final distinction between
trespass and nuisance.

The trial court told the jury that
"trespass . . . gives rise to a right to recover
damages for the trespass, if any damages were caused by the
trespass." This instruction would be appropriate for
nuisance, or negligence, under which theories the plaintiff must
prove all damages, but not for trespass. A jury instruction on
the latter should announce that because the violation of the
right to exclude causes cognizable injury in and of itself, a
plaintiff proving that violation is presumptively entitled to at
least nominal damages. The jury should be further instructed that
beyond the presumed damages, the plaintiff may recover for any
additional, actual damages proved.

The distinction between presumed damages in
cases of trespass and the need to prove damages in cases of
nuisance may well be reconciled with the Supreme Court’s
statement in footnote 23 of Adkins that recovery in
"trespass, like nuisance" should be limited "to a
proper case." We hold that recovery in trespass is
appropriate for any appreciable intrusion onto land in
violation of the plaintiff’s right to exclude, while
recovery in nuisance is appropriate for only substantial and
unreasonable interference with the plaintiff’s right to
quiet enjoyment.

IV Conclusion

We conclude that there is no need to
reformulate the traditional law of trespass to accommodate the
problems of airborne pollution, noise, or vibrations, because the
doctrines of nuisance and related causes of action have always
stood ready to provide remedies. Trespass in Michigan remains a
distinct doctrine providing a remedy for violation of a distinct
property right. A possessor of land proving a direct or immediate
intrusion of a physical, tangible object onto the land is
presumptively entitled to recover at least nominal damages even
absent any proof of actual injury, and may recover additional
damages for any injuries actually proved.

Because Michigan does not recognize a cause of
action in trespass for airborne particulate, noise, or
vibrations, we hereby vacate the jury verdict in this matter and
remand this case to the trial court for further proceedings
consistent with this opinion. We do not retain jurisdiction.

[2]With each
expansion, surface material, also called "overburden,"
consisting of soil, subsoil, and rock was blasted loose then
stockpiled at the edge of the mine property. As the mine was dug
deeper, waste rock was likewise blasted loose and stockpiled. The
resulting mass of overburden and waste rock is unsightly, and so
large that residents of Palmer have nicknamed it "Mt.
Palmer" and say that it causes their town to have early
sunsets.

[6] Some attribute
the origins of this metaphor to a work by Benjamin N. Cardozo,
dating from shortly before he ascended to the United States
Supreme Court. See The Paradoxes of Legal Science (1928) p 129
("The bundle of power and privileges to which we give the
name of ownership is not constant through the ages. The faggots
must be put together and rebound from time to time.").

[7] A.M. Honore
likewise distinguished between the rights of exclusion and of use
and enjoyment, listing the incidents of ownership as follows:

(1) the right to exclusive possession;

(2) the right to personal use and
enjoyment;

(3) the right to manage use by others;

(4) the right to the income from use by
others;

(5) the right to the capital value,
including alienation, consumption, waste, or destruction;

(6) the right to security (that is,
immunity from expropriation);

(7) the power of transmissibility by gift,
devise, or descent;

(8) the lack of any term on these rights;

(9) the duty to refrain from using the
object in ways that harm others;

[10]See Halper, supra
at 122 ("the Restatement (First) expected plaintiffs to bear
uncompensated harms that might, for them, be quite severe, if the
utility of the defendant’s conduct to society at large was great
enough").

[11] We are of the
opinion that this kind of analysis is generally only required in
a nuisance case, and that it is better to preserve that aspect of
traditional trespass analysis requiring no proof of actual injury
because the invasion of the plaintiff’s right to exclude was
regarded as tortious by itself.

[12] This holds even if the noise or vibrations are so
intense as to shatter all glass and fell all masonry, or
otherwise so persistent as to drive all persons from the
premises. Although such hazards would indeed infringe on a
landowner’s possessory interest, it is the interest in use
and enjoyment of the premises, not in exclusion from them, and
therefore the cause of action lies not in trespass, but in
nuisance or the related doctrines of negligence or strict
liability.

[13] See also Reynolds, supra at 228 ("the
old element of trespass that prescribed a direct invasion
of the plaintiff’s interests still has significance"
[emphasis in original]).

[14] Because we conclude that no trespass existed in
the present case because the intrusions at issue were not
tangible things, we need not decide whether defendants caused
those intrusions to enter plaintiffs’ land by direct or
immediate means for purposes of trespass law.

[15] We note that the Restatement itself presents its rule
as a departure from the traditional requirement of a direct or
immediate invasion. 1 Restatement Torts, 2d, § 158, cmt i,
p 278-279 ("it is not necessary that the foreign matter
should be thrown directly and immediately upon the other’s
land"). We would, however, adopt the Restatement’s
formulation as a liberalization, not a rejection, of the
strictest sense of the traditional requirement for a direct or
immediate invasion. Accordingly, rather than reject the
requirement of a direct or immediate invasion, we preserve this
requirement as something akin to proximate cause, meaning
"that which, in a natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury and
without which the accident could not have happened, if the injury
be one which might be reasonably anticipated or foreseen
. . . ." Black’s Law Dictionary at 1225.